Pending Litigation

Also known as 10002(l)(9) 10002(I)-9.

Thank you to Curtis Waltman for contributing to this entry. This guide is for informational purposes only, is general in nature, and is not legal opinion nor legal advice regarding any specific issue or factual circumstance.

Exemption (I)(9) deals with pending litigation. Courts in Delaware have developed a two part test to see if a pending litigation exemption will hold up. First there must be likely or reasonably foreseeable litigation that would result from a release of documents. Second, there must be a clear relationship between the documents requested and the subject of potential litigation. For this exemption to hold up an agency must be able to provide tangible proof that a party is threatening to sue and that they have retained counsel for the purpose of doing so. This is because without very clear objective qualifications, this exemption might affect far too many requests, as government work can often be controversial and thus the subject of litigation down the line.

Uses of (I)(9) should be limited to cases where a party is using FOIA to gain information (discovery in legal terms) that would help their case in court. If the request does not touch on information that one is planning to use in litigation, and there is no proof that litigation is pending in anyway, then there is a good chance to win the appeal.

Example Appeals

This case illustrates that even though there may be real pending litigation, just because someone requests documents on the subject matter if they are not planning on using the information in a lawsuit themselves then it is not to be exempted under FOIA.

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This case reveals how one can successfully appeal this exemption. A request for documents relating to a controversial water system in Wilmington, DE resulted in a denial under (I)(9). In response to the appeal, the AG could not find tangible, documented proof that the requester had any actualy intent to sue. The AG highlights very nicely how exacting the agencies proof must be that litigation is pending to use this exemption. It is intended to be a very narrow exemption.

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Proper Use

exempting a document that can be used in pending litigation and the information released would lead to a discovery, and thus an unfair advantage in a court of law

Improper Use

exempting a document that does not touch on subject matter involved in pending litigation
exempting a document on subject matter that the agency has no documented proof is going to be involved in pending litigation

Key Citations

Claxton Enter, v. Evans County Bd. of Comm’r, 549 S.E.2d 830, 834-35 (Ga. App. 2001

Solid Waste Auth’y v. The News-Journal Co., 480 A.2d 628, 631 (Del. 1984)

Office of the Public Defender v. Delaware State Police, C.A. No. 01C-09-208, 2003 WL 1769758 (Del. Super., Mar. 31, 2003